Citation Nr: 9821957
Decision Date: 07/20/98 Archive Date: 08/03/98
DOCKET NO. 95-00 016 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office in
Columbia, South Carolina
THE ISSUES
1. Entitlement to service connection for polyarthritis.
2. Entitlement to service connection for chest pain .
3. Entitlement to an increased evaluation for
gastroesophageal reflux, currently evaluated as 10 percent
disabling.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Suzie S. Gaston, Counsel
INTRODUCTION
The veteran had active military service from March 1988 to
June 1994. She has been represented since July 1996 by The
American Legion.
This matter came before the Board of Veterans’ Appeals
(hereinafter Board) on appeal from a rating decision of
September 1993, by the Columbia, South Carolina Regional
Office (RO), which granted service connection for
gastroesophageal reflux and seborrheic dermatitis, each
evaluated as 10 percent disabling. This rating action also
denied the veteran’s claims for service connection for
sinusitis, asthma, pyelonephritis, anemia, polyarthritis and
chest pain. The notice of disagreement with this
determination was received in October 1994. The statement of
the case was issued in October 1994. The substantive appeal
was received in November 1994. The veteran appeared and
offered testimony at a hearing before a hearing officer at
the RO in March 1995. A transcript of the hearing is of
record. Additional medical records were received in April
1995. A supplemental statement of the case was issued in
August 1995. The appeal was received at the Board in
September 1996.
In May 1997, the Board denied service connection for asthma,
pyelonephritis, granted service connection for sinusitis and
asthma, increased the evaluation for seborrheic dermatitis to
30 percent and remanded the issues shown on the front page of
this remand. A supplemental statement of the case was issued
in February 1998. The appeal was received back at the Board
in April 1998.
The Board notes that the veteran on her June 1994 application
claimed service connection for polyarthralgia; however, the
RO has never addressed that issue. Therefore, it is referred
to the RO appropriate action.
REMAND
When the Board remanded this case to the RO in May 1997, it
requested that the RO schedule the veteran for orthopedic and
neurological examinations for the purpose of obtaining a
definitive diagnosis and a medical opinion as to the nature
and etiology of any current polyarthritis found. The RO was
also directed to arrange for the veteran to be examined by a
VA gastroenterologist in order to solicit a medical opinion
as to whether her chest pains were related to the service-
connected gastroesophageal reflux; and, if so, the RO was
directed to give specific consideration to the application of
38 C.F.R. § 3.310(a) (1997) and the merits of a claim for
service connection on a secondary basis.
The record reflects that the veteran was afforded a VA
orthopedic examination in November 1997. Although the
veteran was examined, and her claims file furnished and
reviewed by the examiner, the examiner failed to answer the
question regarding the presence and etiology of
polyarthritis. Rather, the examiner stated that the veteran
had polyarthralgias on her knees and shoulder intermittent in
nature associated with a history of discoid lupus skin
lesion; he further stated that the etiology of
polyarthralgias was unclear. Clearly, the veteran was not
examined by a neurologist, and the examining physician
addressed a completely different disability than the one in
question.
The Board further notes that, following the November 1997 VA
examination, the examiner noted that some of the signs and
symptoms the veteran described such as chest pain was
occasionally seen with either hiatal hernia or
gastroesophageal reflux disease depending on the extent of
the problem. The examiner further noted that sometimes
gastroesophageal reflux or hiatal hernia could present as
cardiac symptoms, e.g. chest pain. Subsequently, in a
supplemental statement of the case, dated in February 1998,
the RO considered chest pain as part of the gastroesophageal
reflux disease and brought the issue of entitlement to
service connection for chest pain forward for historical
purposes only. In this regard, the Board is not clear
whether the RO by this action has granted service connection
for chest pain and, even if it did, whether this satisfies
the appeal as it is not clear whether the veteran may have
some chest pain which is not part of the service-connected
gastroesophageal reflux.
The United States Court of Veteran’s Appeals (Court) recently
held that a remand by the Court or the Board confers on the
veteran or other claimant, as a matter of law, the right to
compliance with the remand orders. It was held further that
a remand by the Court or the Board imposes upon the Secretary
of Veterans Affairs a concomitant duty to ensure compliance
with the terms of the remand. 38 U.S.C. § 303. Finally, it
was hold that where the remand orders of the Board or the
Court are not complied with, the Board itself errs in failing
to insure compliance. Stegall v. West, No. 97-78 (U.S. Vet
App. June 26, 1998).
In light of the foregoing, the Board finds that further
development is in order prior to appellate disposition of
this case. Accordingly, the Board hereby REMANDS this case
to the RO for the following actions:
1. The RO must specifically state
whether it has granted service connection
for chest pain as part of the service-
connected gastroesophageal reflux. If so
it must inform the appellant and ask her
if that satisfies her appeal or whether
she wishes to pursue the issue of
entitlement to service connection for
chest pain other than that due to
gastroesophageal reflux.
2. The RO should obtain all VA treatment
records of the veteran which are not
currently in the claims file and
associate them with the claims file.
3. The veteran should be afforded a VA
examination by a specialist in
gastroenterology. The RO should furnish
the examiner with the criteria of
Diagnostic Code 7346 and the claims
folder. The examiner should specifically
indicate whether he/she had the
opportunity to review the claims folder
and has been furnished the criteria of
Diagnostic Code 7346. The examination
findings should be stated in relationship
to Diagnostic Code 7346. If service
connection for chest pain as due to the
gastroesophageal reflux has not been
granted or if service connection for
chest pain as part of the esophageal
reflux has been granted but the appellant
wishes to pursue the issue of service
connection for chest pain other than that
due to esophageal reflux then the
examiner should state whether the
veteran’s chest pain is due to or is part
of her gastroesophageal reflux disease.
The examiner should also indicate whether
the veteran has any other chest pain (not
associated with the gastroesophageal
reflux); if so, he or she should offer an
opinion as to the etiology of that chest
pain. The examiner should set forth the
factors which form the basis of the
medical opinion.
4. The veteran should be afforded a VA
examination by an orthopedist and
neurologist, to determine the nature and
extent of any polyarthritis found to be
present. All indicated studies should be
performed. All joints claimed to be
symptomatic should be identified, and X-
rays studies of the affected joints
should be performed. The examiners are
specifically requested to rule in or out
a diagnosis of polyarthritis and to
identify the specific joints found to be
part and parcel of the diagnosis. If
polyarthritis is found to be present, the
examiner is requested to review the
claims folder and provide an opinion
regarding the etiology of polyarthritis.
The examiner should specifically indicate
whether he/she had the opportunity to
review the claims folder. A complete
rationale should be given for all
opinions and conclusions expressed.
5. Regarding the notice to the veteran
of the examinations scheduled in
connection with this remand, the RO
should provide the veteran with
information sufficient to inform her of
the consequences of a failure to report
for any scheduled examination without
good cause. 38 C.F.R. § 3.655.
6. Thereafter, the RO should again
review this case and take further
adjudicative action based on the evidence
obtained pursuant to the development
sought above. If the decision remains
adverse to the veteran, both she and her
representative should be furnished a
supplemental statement of the case which
summarizes the pertinent evidence, all
applicable law and regulations, and
reflects detailed reasons and bases for
the decision. They should then be
afforded the applicable time period in
which to respond.
After the above actions have been accomplished, the case
should be returned to the Board for further appellate
consideration, if otherwise in order. No action is required
of the veteran until she receives further notice.
By this REMAND the Board intimates no opinion, either legal
or factual, as to the ultimate determination warranted in
this case. The purpose of this REMAND is to further develop
the record and to accord the veteran due process of law.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1996) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
E. M. KRENZER
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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